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Sunlight has long called for all bills to be posted online for 3 days before they're considered on the floor. So our disappointment with recent failures to post bills online for 3 days should be no surprise.
Today Sunlight and a number of other groups are sending a letter (below) to Speaker Boehner, calling on him to renew his commitment to posting all bills online for 3 days before their consideration.
Throughout the last year, we've repeatedly pointed out that Speaker Boehner repeatedly pledged to put all bills online for 72 hours before they're voted on, reflecting Sunlight's call and the ReadtheBill.org campaign.
Boehner's pledge was unambiguous and repeated often -- all non emergency bills for 72 hours. Unfortuantely, this has become a pledge that has been broken often, most recently last week with the bills rushed through the House.
For easier reference, here are the commitments on video, edited into one shorter clip.
These commitments matter. Remember when Republicans derided Pelosi for the healthcare bill, and claimed that bills were being "rammed down" their throats? Similarly, remember when (mostly) Democrats were outraged that the PATRIOT Act wasn't read before it was passed?
When we're pushing for important transparency reforms, like having all bills online for 72 hours before floor consideration, the minority party is often a natural ally. Each time the majority changes hands, there's usually a rush to reform processes, and promises to run a more accountable ship. Of course, many of these promises are kept, and we make progress.
But the toughest promises to keep are often the most important, and this Congress has a very poor track record on legislative secrecy. When the most important bills are written by a tiny number of negotiators, and then foisted on the rest of Congress at the eleventh hour, we can expect dismal approval ratings and mistrust to rule the day.
While such discord in Congress is more likely under divided government like we've got now, perhaps Boehner (and Obama) should revisit the visions they set for their current roles before they began -- Obama on Change.gov, and Boehner in the Pledge to America.
They should remember that when they run up to the last possible second to negotiate deals between party leaders, it's not a zero sum competition. It's not whether Republicans or Democrats gain ground, or are seen as taking the more reasonable position. When the 72 hour expectation is flaunted, our trust in government suffers, as does our sense of merit in policymaking, and our sense of self governance.
Leaders from both parties have largely turned their backs on transparency in policymaking. Whether it's the perceived necessity of SuperPACS, or the acceptance of the ridiculous secrecy of the SuperCommittee, neither party has found solid ground to discuss transparent process.
Let's hope they revisit their past rhetoric, because without solid footing, we'll just keep sliding downhill.
Having legislation that is meaningfully public isn't a luxury, it's a requirement. A closed Congress is an abused process. Our leaders should remind themselves of the times they've agreed with that sentiment.
UPDATE [06/25/10 @ 12:00 pm]: I've created a word cloud of the merged Dodd - Lincoln language, one of the important versions of the bill on the way to the final compromise language. We'll do a side by side word cloud once the final language is out. Also keep an eye on the Open Congress page of the bill as they will have a direct text comparison with older versions of the bill. Want even more information on financial reform? Check out the excellent FreeRisk wiki.
Need some reading materials for the weekend? Do we have a recommendation for you! The consensus version of the massive financial system reform bill will be put online starting tomorrow. This is another great victory for the Read The Bill campaign - our unrelenting effort to makes sure Congress puts all bills online for 72 hours before a vote.
Representative Barney Frank (D-MA) says that the entire bill will be online for "at least 68 hours" (with most parts of the bill online for much longer) before it is taken up for a vote in Congress. Rep. Frank has been chairing the conference committee that reconciled the House and Senate versions of the bill.
We can't stop here - Read The Bill is part of a larger Public=Online campaign to make sure all public data is online and in real-time. Help us make sure that putting bills online for 72 hours before a vote isn't just the norm - it's the law.
Some might say it's early to claim victory on this bill. I disagree: it's currently 4:12am on Friday so there simply won't be a chance for this bill to be taken up over the weekend. We're able to bring you this breaking news because we've been covering the conference committee since 9:45am on Thursday - and this is day seven of said committee. Hopefully you can appreciate my sanguineness. :)
Want to know how the final compromises went down? The complete archive of our coverage, including the final 19 hour marathon can be found below by replaying our live blog which you can find below the fold. If you want just the highlights you can find them in our Twitter account: @sunlightnetwork.
The House-Senate conference committee on financial regulatory reform legislation has begun its work with the goal of completing the bill and sending it to the President before the July 4th recess. As Chairman Dodd said, “It is our intention that this conference be done as openly as possible. Not only do we want people to know how we are proceeding, people have a right to know.” That sentiment must extend after the conference. Before Congress votes, the final financial reform bill must be online 72 hours.
Even if the conference itself is fully transparent, citizens, journalists and lawmakers should have the opportunity to examine the changes to legislation and raise questions and concerns about the bill while it can still have an impact. In 72 hours, any citizen, advocacy organization, analyst or media entity has time to review and assess the impact of the legislation, mobilize others in support or opposition, and take any action they believe appropriate.
Sunlight has long supported H. Res. 554, a bill that would mandate a 72-hour rule for all non-emergency legislation. But, even without rule-changing legislation being passed, Congress has realized the importance of giving the public 72 hours to review numerous important and controversial bills, including the health care reform bill. The public deserves the same opportunity with the financial regulation overhaul.
The public should not accept excuses from Congress as to why they cannot make the bill publicly available for 72 hours prior to a vote. The House passed its regulatory reform bill in December of 2009 while the Senate approved its bill weeks ago. Providing three more days for the public to review and digest the legislation before a final vote will not cause markets to crash, retirement funds to be depleted or banks “too big to fail” to shutter their doors.
Join us in our effort to ensure transparency of the financial reform bill online for 72. Call your Representatives in the House and Senate and ask them to demand that the financial regulatory reform bill is online for 72 hours before a final vote. And join us in the fight for more transparency by signing Public=Online pledge.
Once they have a bill, Dems need to post it online for at least 72 hours for members to review before a vote.
The fact that reporters covering Congress are stating that the Majority "needs" to post the bill online for 72 hours shows how far the Read the Bill effort has gone. As this policy has become the norm it is increasingly clear how important legislative information is to both individual members of Congress and ordinary people.
Congress should still pass a rules change to require the 72 hours reading time to make the policy enforceable. Still, you've shown Congress that people out there want to be able to read legislation and be assured that their representatives have enough time to read and study the bills.
Last week, Jake wrote that "it is utterly imperative that the final version of the bill be online for the public to view for at least 72 hours." The House Majority just announced that they will do just that (via #HealthReformNow):
Pelosi and Hoyer say final health reform bill will be online for 72 hours before House vote so Members and Americans can review #hcr
This is a great development and another big win for those who have called for the bill to be available to the public for 72 hours throughout this whole process. The Sunlight Foundation has called for the health care bill to be available to the public for 72 hours at each point that versions have come to the floor. In each of these instances the majority has acquiesced and posted each version, from the House bill to the Senate bill, for at least 72 hours prior to consideration. Those of you who have signed the Read the Bill petition and put the pressure on Congress to be this transparent have been vital in ensuring that we have access to this major bill before lawmakers consider, debate and vote on it.
Think of posting something on line for 3 days as a ‘safety valve’ – a final chance for citizens, media, lawmakers and lobbyists alike to look at the whole package giving everyone one last opportunity to raise questions and concerns about the bill. If readers are in an advocacy mode they have time to mobilize others in support or opposition, and/or take action in whatever form they see fit.
There is no measure more important to debate in the open than health care, and this is a moment when we all need to be champions for public, online disclosure and engage with our government. With 72 hours, the buck can actually stop with citizens the way our Founders intended. We know that Congress do it because congressional leadership has already done so at other critical points in this debate.
Of course, we still need to make sure that this promise is kept and that won't be done until the bill has been online for 72 hours and then brought to the floor. Let's keep it up.
As Jake wrote last week, the final version of the health care bill must be made publicly available for 72 hours prior to floor consideration. For us here at Sunlight figuring out what that exactly means has been a moderately arduous task over the past week. The legislative process to be used, “ping-pong,” is fairly confusing and, due to that, pin-pointing the final version is difficult. I'm going to try and unpack this in the best way possible here.
How exactly does this “ping-pong” process work? “Ping-pong,” like the game, envisions the two chambers sending amendments to the bill back and forth with multiple votes on amendments. Ultimately, the chambers will reach agreement and the bill will finally be considered passed.
Choose a legislative vehicle to amend. This could be the House bill or the Senate bill.
One chamber – let's say the House – proposes an amendment or a series of amendments to alter the language of the bill. In the case of the health care bill it is highly likely that this amendment will come in the form of a single amendment in the form of a substitute.
The second chamber – the Senate in this example – is then offered three options: agree to the House amendment, agree to the House amendment with further amendment or reject (if there are multiple House amendments the Senate may agree with some and disagree with others).
If the Senate agrees to the House amendment to the bill then the bill is considered passed and heads to the President for his signature. If the Senate, however, decides to further amend the House amendments then they can report the bill back to the House with a Senate amendment to the House amendment to the bill. (More on rejection later.)
If this happens, the bill and it's amendments can go to each chamber only once more before the process ends with either a passed, amended bill or the rejection of the process, which doesn't necessarily mean the bill has been defeated.
If rejection happens anywhere along the way, it can come with a motion from the rejecting chamber to do a number of things. These could hypothetically be a motion from the Senate for the House to recede on parts of their amendment(s); a motion to form a conference committee; or a motion to begin the process again.
So... where in this lies the FINAL bill. First and foremost, we consider the first amendment to the bill to be the final version of the bill. This amendment must be made available for at least 72 hours prior to a vote. This means that if the amendment is made available on Monday both chambers could, conceivably, consider and vote in the affirmative on this amendment on Thursday. But, you say, the second considering chamber can offer their own amendment to the first amendment offered. If the amendment offered by the second considering chamber contain major changes to the legislation or the original amendment(s) in the “ping-pong” process it needs to be available for 72 hours before the second considering chamber can consider them. If the amendment offered by the second considering chamber consist solely of minor technical edits, it need not be available.
There is a little bit of Calvinball involved here, but I think that is totally reasonable considering the unpredictability of the process. All that we, the public, need to do is remain vigilant in ensuring that this complicated process remains as transparent as it can be until it reaches an endpoint.
And as that debate unfolds, we're going to bump up against things we've simply never dealt with before. But in the debate of what's the right way to bring about transparency, one thing is eminently clear: the public and legislators alike MUST have time to read legislation before it's debated and be able to make their voice heard by their representatives as a result.
A couple of days ago I wrote about some of the potential transparency issues related to the decision by House and Senate Democrats to skip conference for the health care reform bill (see here for background on what conference is). After thinking more and more about the issue I'm inclined to believe that the issues raised with skipping conference relates more directly to a structural shift in Congress that far too many are ready to ignore. (For more on the conference committee controversy see this post by John Wonderlich.)
Ezra Klein, who has been focusing on congressional malfunctions for the past few months, points out the major shift in congressional relations and partisan behavior in recent years:
...understanding the United States Congress as an institution gripped by ideological competition is simply wrong. It's an institution gripped by electoral competition. The political scientist Frances Lee puts this particularly clearly in her new book, “Beyond Ideology.”
"Parties," she writes, "are institutions with members who have common political interests in winning elections and wielding power, not just coalitions of individuals with similar ideological preferences." According to her data, senators in 2004 are 63 percent more divided along party lines than senators in 1981. It's no coincidence that the rise in party-line voting has coincided with the ideological realignment of the parties. Now that the parties agree internally, they can focus their efforts on winning power.
The dynamic that this electorally centered process creates is one in which the minority has no incentive to help the majority pass legislation. Rather than working to include conservative ideas in the health care bill there is total opposition from the Republican side. In this era, the key for the minority party, especially one that has suffered successive losses, is to kick the majority out and regain power. It's like a football team who throws in the towel in the middle of a losing season to acquire a high draft pick. Might as well aim to regain power in the future than play the game in the present. It worked for Republicans in 1994 and Democrats in 2006.
This new era (the past twenty-some-odd years) of Congress poses numerous problems for transparency in the legislative process. This largely stems from the fact that what has been viewed as the normal legislative process in the past no longer applies.
In many ways, there are moves to address some of these changes in legislative behavior. The passage of a rule requiring legislation be publicly available for at least 72 hours before consideration would reduce the ability of the majority to rush legislation. There have already been some reforms to the Rules Committee, while others continue this discussion. Earmarking is reduced and vastly more transparent. These are not fixes to get back to some “normal” legislative process that no longer exists, but ways to adapt to the way the legislature works in a partisan and electorally focused era.
There are countless debates circulating regarding how best to adapt to this new legislative era. Transparency advocates should be aware of the way Congress has changed and focus on adapting the transparency agenda to reflect this changing dynamic rather than seeking to return to a “normal” procedure that has long since become irrelevant.
Earlier today, Jonathan Cohn broke the news that House and Senate Democrats are "almost certainly" going to bypass the official conference committee process to pass the health care reform bill. The reasoning given by Democrats is that going to conference allows Republicans with multiple opportunities to block or delay the bill's ultimate passage. David Waldman gives a great run-down of the rules that would allow for further delay. The move to conference would require multiple Senate votes on moving to conference and appointing conferees, all processes that are subject to cloture votes (60 votes) and require 30 hours of debate. Skipping conference eliminates these cloture votes and requires lawmakers to only cast votes on the final passage of the bill. While providing the speedier passage of the bill, skipping conference presents some transparency-related problems.
Recently adopted and long standing House and Senate rules require conference committees to be generally open to the public. Both House and Senate rules require that all conference committee meetings be open to the public unless a majority of conferees votes in open session to close the meetings. Senate rules require all conference committee reports be publicly available for at least 48 hours prior to a final vote. Without conference, there is no mechanism to provide for openness in the final discussions regarding the health care bill.
Other conference rules provide for openness within the conference committee rather than public openness. These provisions require that conference committees not exclude conferees from decisions or refuse them the ability to see documents or participate in meetings. It will be much easier to exclude potentially difficult members (coming from both the left and right) without a formal conference.
The forgoing of formal conference isn't entirely uncommon -- and, in the end, everyone will still have to go on the record as for or against the final bill. At the same time, the process may speed up the bill's passage while potentially limiting both the public's and many of their elected official's ability to consider the changes to the bill. As with every other major moment of consideration during this bill's journey, both chambers should make the final version (conference report, amendment, substitute) available for at least 72 hours prior to consideration.